Sudhir Chandra Verma J. - (1.) THE release application of Respondents No. 2 and 3 under Section 21(1)(a) of U.P. Act No. 13 of 1972 (hereinafter referred to as the Act) was allowed ex -parte by an order dated 11 -5 -1990. The petitioner filed an application for setting aside ex -parte order supported with an affidavit, in which it was alleged that by inadvertence the counsel for the petitioner noted the date fixed as 25 -5 -1990 instead of 25 -4 -1990 and he was informed accordingly. Under bona fide belief when he came to the court on 25 -5 -1990 the petitioner was informed by his counsel that the case has already been decided against him on 11 -5 -1990 ex parte. An application for restoration and setting aside ex -parte order was filed on 25 -5 -1990. The prescribed authority rejected the application by order dated 17 -12 -1990. It was held that on 18 -4 -1990, 25th April, 1990 was fixed for hearing and evidence of the parties. The petitioner was deliberately trying to delay the proceeding as he did not file any objection since 3 -12 -1988 upto 25th April 1990 inspite of several opportunities being given to him. Learned Prescribed authority was of the view that some interpolation was made in the order sheet as instead of 25 -4 -1990 it was changed to 25 -5 -1990. According to. him all this indicates the delaying tactics and the negligence on the part of the petitioner and, as such, the cause shown was not sufficient to set aside ex -parte order. The petitioner has also not come with clean hands and the application is liable to be rejected. This order was challenged in appeal under Section 22 of the Act but on the legal advise the appeal was withdrawn.
(2.) HEARD learned counsel for the parties. It is not disputed that the petitioner was not present on 18 -4 -1990 when the next date for hearing was fixed. Normally after the dates are fixed the counsel for the parties inform the clients and if on account of bona fide mistake of the counsel the date was wrongly noted as 25 -5 -1990 and the petitioner was informed accordingly, the petitioner was at no fault and he should not be penalized for the mistake of his counsel. The petitioner on the basis of the aforesaid information attended the court on 25 -5 -1990 and when he was informed about ex -parte order against him he immediately filed an application for setting aside ex -parte order on 26 -5 -1990. Learned Judge was not justified in holding that this was a tactic by the petitioner to delay the hearing. It may be that he had not filed objection to contest the release application but the court was at liberty to proceed with the hearing of the case without objection. In these circumstances this can not be treated as a reason to reject the petitioner's application. Learned Prescribed authority has not given any reason nor has disbelieved the case set up by the petitioner about the inadvertence and bona fide mistake of his counsel. Unless it is disbelieved on cogent reasons there was no justification for the Prescribed authority to have rejected the application for setting aside ex -parte order. The other reasons indicated in the order also can not be a ground for rejection of the present application. Even if there was some interpolation in the order sheet the petitioner should not be penalised unless proper fact finding inquiry was conducted as to who has committed the mistake. Apparently there seems to be no reason why this interpolation would be done by the petitioner when he had filed application to set aside ex -parte order on 28 -5 -1990 which would be within limitation even if ex -parte order was passed on 11 -5 -1990. In my opinion the petitioner had shown sufficient cause for his absence and the ex -parte order is liable to be set aside. The petition is allowed. The order dated 17 -12 -1990 is quashed. Learned Prescribed authority is directed to dispose of the case expeditiously, if possible, within three months from the date of production of certified copy of this order before him. The petitioner is also directed to furnish certified copy of this order within fifteen days of its issue before the Prescribed authority and file his objection within ten days thereafter. The petitioner would co -operate in the hearing of the case and in default of any of the conditions the Prescribed Authority would be at liberty to proceed ex parte.;